Walker v. Parker

29 F. Cas. 43, 5 D.C. 639, 5 Cranch 639

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: March 15, 1840
• Status: Published

Opinion

Cranch, C. J.,

said it could be only presumptive evidence of notice, and that presumption is destroyed by the fact that the notice was not received until after the depositions were taken.

Morsell, J.,

thought that the party had done all that was reasonable, all that he was bound to do ; and Mr. Scott ought to have been there to receive the letter in time.

Thruston, J.,

said it was not a case to which the law-merchant applies, and therefore common-law notice was necessary.

Mr. Key and Mr. Coxe, for the complainant, objected to Mr. Jones now, after the lapse of several years, taking particular exceptions to the depositions, not specified at the time the depositions were returned and opened.

The Court, however, overruled the objection, and suffered Mr. Jones now to specify and insist upon his particular objections to the depositions. See Gresley’s Equity Evidence, 155, Philadelphia Edition, 1837 ; Eaymond’s Digested Chancery Cases, 79.

Mr. Jones then objected to the depositions of Benjamin M. Piatt and Nicholas Longworth, that they were parties in the cause, and there was no order of the court to take their depositions ; and that they were also parties in interest. That Lóng-worth’s deposition was never finished, on account of his ill health.

Mr. Key, contra:. Longworth’s deposition is complete; it does not appear that any interrogatories are not answered, or that either of the parties wished to put others.

As to the objection of interest, they are merely executors without any personal interest, and are mere nominal parties. The contest is between two contending assignees of-John H. Piatt.

The defendant has waived the objection of interest by requiring these witnesses to be cross-examined upon the merits after the interest, if any, was disclosed, and no objection then made to their competency. The objection should have been taken at the time of the examination. United States v. One case of Hair Pencils, 1 Payne, 400; Gresley on Equity Evidence, 207.

Mr. Jones, in reply. There is a difference between an examination in open court, and before commissioners. If it be in open court, the moment the interest is discovered upon cross-examination, the court decides that the witness is incompetent, and his testimony is at once excluded. But upon an examination before commissioners, non constat that the coqrt will reject the witness; the objection may be overruled, so that if the party should be precluded from further cross-examination before the commissioners, he would lose the benefit of cross-examining the witness. The cross-examination, therefore, ought to proceed de bene esse, to avail the party, in case his objection should be overruled; and to be rejected if the objection should prevail. A party can be examined as a witness, only under an order of the Court, and then only upon collateral matters.

The CouRT, (MoRsell, J., contrcl,) was of opinion, that the defendants, the executors of John H. Piatt, were not competent witnesses, without an order of the Court to examine them; and that they were interested, and therefore the Court would not order their depositions to be taken.

That the cross-examination of Piatt was not a waiver of the objection on account of his interest, although .the cross-examination was continued after his interest was disclosed; the-objection to the competency of the witness having been expressly saved by the agreement for the cross-examination.

By consent, the order for setting the cause for hearing was set aside, and new commissions issued for taking the testimony of the witnesses.'